There was an unfortunate incident of photo-bombing at Áras an Uachtaráin last week. The picture was meant to record a moment of history – the new Government with the President after he had given each of its members a ministerial seal of office. But there are three interlopers at the back: Fine Gael’s Hildegarde Naughton, and Regional Independents Seán Canney and Noel Grealish, all literally posing as members of the Government.
The previous day an outraged Micheál Martin accused the Opposition parties of a “subversion of the Irish Constitution” by disrupting his election as Taoiseach. Fair enough. But while we’re on the subject of subverting the Constitution, is it not the case that a core part of the deal to establish this Government is itself unconstitutional? And if it is, what is the Attorney General going to do about it?
When Martin announced the membership of his Cabinet last week, he also appointed three “super junior” ministers: Naughton, Canney and Grealish. This practice has been established since 1994, when Pat Rabbitte was allowed to join his Democratic Left colleague Prionsias de Rossa at the Cabinet table even though he was not a member of the government. But it is almost certainly unlawful.
In a column in the Irish edition of the Sunday Times at the weekend, the former taoiseach Leo Varadkar wrote as follows: “Politicians are hamstrung by our Constitution which limits the number of senior ministers to 15 ... When I was taoiseach, I tried to get around the ‘rule of 15′ by creating three super-junior ministries with real and clearly defined responsibilities.”
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The language is interesting here. “Hamstrung” rather than “bound”. And “get around”? What is being sidestepped? It is, as Varadkar explicitly acknowledges, Bunreacht na hÉireann, the basic law of the State. The invention of the super junior minister is, quite openly, a device to evade the rule of law.
The Constitution could not be clearer: “The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.” Adding super juniors (who were, of course, not appointed by the President, whatever the group photo might seem to imply) creates a Cabinet of 18 members.
The get-out clause is that super juniors don’t have a vote at Cabinet. But this is meaningless. As Varadkar helpfully reminds us: “The fact they [ie his three super juniors] didn’t have a vote doesn’t matter – there haven’t been votes at Cabinet for decades.” In every other respect they functioned at meetings as though they were members of the Government: “At Cabinet, they were treated as equals, had a full set of advisers and brought their own memos for decisions.”
Aside from the flagrant evasion of the constitutional limit on the number of Cabinet members, there are two huge problems here. The first is this business of super juniors bringing “their own memos” to Cabinet meetings for decision by Government. It is very hard to see how this can be lawful.
Each incoming minister is given a handbook by the Taoiseach that sets out the rules for the conduct of Government. It’s absolutely explicit on this issue: “Proposals requiring a Government decision should be the subject of a memorandum from the responsible Minister.” There is no confusion about what “responsible Minister” means in this context. Again Varadkar’s column on Sunday is useful: “Ultimately, [the super juniors] were not the heads of their departments as there were only 15 and everyone in the system knew it ... they might be in the Cabinet but are not in the Government, in its true constitutional sense.”
So “everyone knows” that a super junior is not “the responsible Minister” and is therefore not entitled to bring proposals to the Cabinet table for decision by the Government. But “everyone” allows it to happen anyway.
Secondly, there is a barefaced breach of the constitutional requirement for Government discussions to be confidential. The code of conduct is again emphatic: “Article 28.4.3° of the Constitution requires the maintenance of strict confidentiality regarding discussions at meetings of the Government except where the High Court determines that disclosure should be made.”
Note here that we are dealing with discussions of “the Government”, which is to say its 15 constitutionally appointed members. But super juniors, who are not members of the Government, are present for these confidential discussions without the required High Court orders. Or are we to believe that they stick their fingers in their ears when their colleagues are talking? Maybe they are issued with noise-cancelling headphones?
The code of conduct actually goes very far with this one. It warns that office holders “should avoid making public statements or commenting on specific policy proposals which are to be brought to Government or which are under consideration by Government. For example, only in exceptional circumstances would it be appropriate to disclose the fact that a particular matter is due for consideration at a specific Government meeting.”
This rule is breached on a weekly basis but it raises particular questions in relation to Canney and Grealish. Presumably, their colleagues in the Regional Independents expect to be briefed on what’s coming up at the next Cabinet meeting. It will be interesting to see how they react when they are told, as they surely will be, “I couldn’t possibly comment”.
But the biggest question here is for Attorney General Rossa Fanning. The Supreme Court has ruled that the AG does not merely have a right to step in to prevent breaches of the Constitution – he has a duty to do so. It would be very helpful if he would explain to the public why it is okay to “get around” constitutional rules on the limits to the size of the Government, the right to bring memos for decision by Cabinet and the requirement for strict confidentiality. Otherwise citizens might be inclined to think the Constitution can be overridden by the demands of political convenience – an impression no law-bound democracy could tolerate.
